A judgement of the Telangana High Court this month that upheld Muslim women’s right to invoke khula, the process for a woman to obtain divorce under Islamic law, will go a long way in their fight for justice. The court held that a Muslim wife has an absolute and unconditional right to dissolve her marriage through khula and that the husband’s consent is not a prerequisite for its validity. The bench was hearing an appeal by a Muslim man who contested the divorce his wife initiated though he refused consent to a khula. The verdict also stated the clerics have no role in effecting khula and that religious bodies cannot issue valid divorce certificates. The judgement stated that only the courts can grant divorce after ascertaining if the khula is valid. However, the husband has the right to challenge the verdict.
The Kerala High Court pronounced a similar judgement in 2022, declaring that unilateral divorce “is an absolute right, conferred on her by the Koran and is not subject to the acceptance or the will of her husband”. The judgement had placed khula on equal footing with talaq, the unilateral right available to Muslim men to dissolve a marriage, stating that both are unconditional modes of divorce.
Divergent opinions exist regarding khula, with some Muslim scholars asserting that khula cannot happen without the husband’s consent. A petition has been filed in the Supreme Court challenging the Kerala High Court order. The All-India Muslim Personal Law Board argues that khula is dependent on both husband and wife agreeing to end the marriage after a woman initiates the proposal. The court, however, has observed that neither the Quran nor the Hadith prescribes a mandatory procedure if the husband rejects the wife’s demand for khula, thereby making any insistence on his consent both theologically and legally untenable.
The Telangana High Court’s verdict emphasises the supremacy of civil courts in matters of personal law. It contributes to the current debate on balancing religious freedoms and the rule of law by asserting that the judiciary is the ultimate arbiter on issues related to the legal status of individuals while upholding the religious character of divorce. It clears the path for resolving long-pending khula cases awaiting trials due to the husbands’ refusal to consent to divorce.